9911796707
TMI Blog2018 (12) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004. 2. Briefly the facts of the present case are that the appellants are registered with service tax department for providing taxable services under the category of Mandap Keepers, Business Auxiliary Service, Renting of Immovable Property Services and Dry Cleaning Services. During the course of the audit of the records of M/s. The Lalit Ashok, by the officers of the Audit Wing of the Service Tax Commissionerate, Bangalore, for the period from October 2004 to September 2009, it has been observed that the assessee a registered service provider is engaged in Mandap Keeper Service, Business Auxiliary Service, Renting of Immovable Property Services and Dry Cleaning Services. During the scrutiny of the ST-3 Returns and invoices raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 1994. On being pointed out the assessee has paid the Service Tax of Rs. 41,13,018/- and interest of Rs. 17,42,623/- vide G.A.R.-7 challan CIN No. 23,24,25 & 26 dated 08.07.2011 and 41,42,43 & 44 dated 09.07.2010. Further, on verification of output service invoices, it was observed that the assessee is providing room services to Diplomats, and hence the services provided to those units are exempted. It is also observed that separate records were not maintained for purpose of cenvat credit. It is observed from the records that the cenvat credit available for each month has been fully utilized for payment of Service Tax liability for the particular month. As per Rule 6(3)(A) of Cenvat Credit Rules, 2004, when a service provider has not opted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994. On being pointed out, the assessee paid Service Tax of Rs. 43,260/- and interest of Rs. 3,006/- vide G.A.K-7 Challan CIN No. 228 dated 05.04.2010. On verification of the miscellaneous income account and Service Tax payment particulars of the assessee, it was observed that certain commission was received from Thomas Cook for selling and buying of foreign exchange from the customers. The same is chargeable to Service Tax from 16.05.2008 under Banking and Financial Services. The Commission received for the year 2008-09 is Rs. 2,14,213/- and Service Tax of Rs. 23,002/- is payable (worksheet enclosed). Therefore, the assessee was required to pay the Service Tax of Rs. 23,002/- along with applicable interest as per Section 75 of the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid: Provided that the Central Excise Officer may determine the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the demand has been raised on the basis of audit objection and it is alleged in the show-cause notice that but for the audit, this would have gone unnoticed hence the assessee has suppressed the information with intent to evade payment of tax. In reply to this allegation, the learned counsel submitted that in the statement of Shri K. Nagaraju who clearly stated that there was no intention to evade payment of service tax and that the short-payment of service tax or excess availment of CENVAT credit was purely on account of clerical mistakes committed by the officer who had been handling service tax matters and who had expired and further the Finance Manager of the unit who had been handling service tax matters had also resigned and in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, then under Section 73(3) of the Finance Act, the Department is precluded from issuing the show-cause notice. Further we find that show-cause notice was issued merely on audit objections and in view of the various decisions cited supra, no suppression can be alleged merely on audit objections. Further we find that the Hon'ble Delhi High Court in the appellant's own case reported in 2018-TlOL-178-HC-DEL-ST under similar facts and circumstances dropped the penalty. Relevant para 31 of the judgment is quoted herein below: "31. The provisions relating to penalty have been discussed by various benches of the Appellate Tribunals (Sangam Palace V. CCE, 2006 (2) STR 537=2002-TIOL-200-CESTAT-DEL; ETA Engineering Ltd. V. CCE, 2006 (3) ST ..... X X X X Extracts X X X X X X X X Extracts X X X X
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